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LIBRARY 

OF    TIIK 

UNIVERSITY   OF   CALIFORNIA. 

Received 
Accessions  No. 


Jb 


ist0rit»I  S0mi   0f 


ORDINANCE  OF   1787, 


PRESENTED  TO  THE  PUBLICATION  FUND. 


s?;  B 


BY  a  Resolution  of  the  Society,  any  one  who  shall  pay  to  its  Treasurer  twenty  dol 
lars,  obtains  the  right  to  receive,  during  life,  one  copy  of  each  publication. 
AMOUNT  OF  FUND  $11,500. 


HISTORY 


OF    THE 


ORDINANCE    OF    1787. 


BY 


EDWARD     COLES, 

FORMERLY  GOVERNOR  OF  THE   STATE  OF  ILLINOIS  ; 
MEMBER  OF   THE  HISTORICAL   SOCIETY  OF  PENNSYLVANIA. 


*    READ    BEFORE 


THE  HISTORICAL  SOCIETY  OF  PENNSYLVANIA, 


June   9,  1856. 


PRESS  OF  THE  SOCIETY. 

1856. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1856,  by  the 
HISTOKICAL  SOCIETY  OF  PENNSYLVANIA, 

in  the  office  of  the  Clerk  of  the  District  Court  of  the  United  States  in  and  for  the 
Eastern  District  of  Pennsylvania. 


PHILADELPHIA: 
T.  K.  AND  P.  G.  COLLINS,  PKINTEKS. 


JUNE  9,  1856. 

AT  a  meeting  of  the  Historical  Society,  held  this  evening,  it  was, 
on  motion  of  WILLIAM  M.  MEREDITH,  unanimously 

Resolved,  That  the  Secretary  be  directed  to  convey  to  Edward 
Coles  the  thanks  of  the  Society  for  his  valuable  Historical  Sketch  of 
the  "Ordinance  of  1787,"  prepared  by  him  at  their  request,  and  read 
this  evening ;  and  that  the  author  be  requested  to  furnish  a  copy  of 
the  same  for  preservation  in  the  archives  of  the  Society,  and  for 
publication. 

Extract  from  the  minutes. 

FRANK  M.  ETTING, 

Rec.  Secretary. 


ORDINANCE  OF  1787. 


TO  THE  HISTORICAL  SOCIETY  OF  PENNSYLVANIA. 

I  AM  sensible  of  the  compliment  paid  me  by  the  pas 
sage  of  the  Resolution  of  the  Society,  requesting  me  to 
prepare  for  it  an  historical  sketch  of  the  celebrated 
Ordinance  of  1787.  and  regret  that  sedentary  occupation, 
and  particularly  the  labor  of  the  pen,  being  prejudicial 
to  my  health,  will  prevent  my  making  such  a  response 
to  the  call  as  the  highly  interesting  character  of  the 
subject  requires,  or  fulfilling  the  expectations  doubtlessly 
entertained  by  the  Society  when  the  resolution  was 
adopted.  This  state  of  things  will  disable  me  from 
making  the  researches  necessary  to  a  full  exposition  of 
facts,  or  even  writing  out  my  recollections  of  them  to  the 
extent  desired.  It  will  require  me  to  economize  my 
labors  in  every  way  I  can,  and  particularly  the  preju 
dicial  one  of  writing,  and  content  myself  with  develop 
ing  only  such  facts  as  are  essential  to  understanding 
the  history  of  the  Ordinance.  To  this  I  must  add, 
as  a  further  barrier  to  my  doing  justice  to  the  subject, 
that  I  cannot  procure,  here,  a  history  of  Indiana,  or  in 
deed  anything  that  deserves  that  name  of  any  of  the 
subdivisions  into  which  the  Northwestern  Territory 
wras  divided ;  which  compels  me  to  rely  mainly  for  local 
facts  on  my  memory  and  personal  memoranda.  With 
this  explanation,  I  will  proceed  at  once  to  comply  with 
the  request  of  the  Historical  Society  of  Pennsylvania. 


6  THE  HISTOKY   OF 

The  country  situated  to  the  northwest  of  the  Ohio 
River,  long  known  as  the  Northwestern  Territory, 
was  claimed  by  Virginia,  except  a  small  part  of  it 
bordering  on  Lake  Erie,  which  was  claimed  by  Con 
necticut.  These  two  States  ceded  all  their  claims  to  the 
United  States,  and  thus  they  obtained  a  perfect  title  to 
the  whole.  The  deed  of  cession  from  Virginia  was 
dated  March  1,  1784;  and  was  signed,  among  others,  by 
Jefferson  and  Monroe,  afterwards  Presidents  of  the 
United  States.  It  ceded  all  her  right  and  title  to  the 
soil  and  jurisdiction  to  the  United  States,  and  made 
many  stipulations ;  among  others,  "  That  the  French 
and  Canadian  inhabitants  and  other  settlers  of  the  Kas- 
kaskias,  St.  Vincents,  and  the  neighboring  villages, 
who  have  professed  themselves  citizens  of  Virginia, 
shall  have  their  possessions  and  titles  confirmed  to 
them,  and  be  protected  in  the  enjoyment  of  their  rights 
and  liberties."  It  also  reserved  150,000  acres  of  land 
near  the  rapids  of  the  Ohio  for  that  portion  of  her  State 
troops  which  had  reduced  the  country,  and  about 
3,500,000  acres  of  land  between  the  rivers  Scioto  and 
Little  Miami  for  bounties  to  her  troops  on  the  "  Conti 
nental  Establishment."  These  facts  are  mentioned,  and 
should  be  borne  in  mind,  as  they  will  be  shown  to  have 
an  influence  in  forming  the  opinions  and  explaining 
the  conduct  of  a  portion  of  the  inhabitants  under  the 
operation  of  the  Ordinance.  In  consequence  of  the 
objectionable  stipulations  made  by  Virginia,  as  to  the 
divisions  of  the  territory  into  States,  the  deed  of  cession 
was  referred  back  to  that  State,  with  a  recommendation 
from  Congress,  that  these  stipulations  should  be  altered. 
On  December  30,  1788,  Virginia  assented  to  the  wish 
of  Congress,  and  formally  ratified  and  confirmed  the 
fifth  article  of  compact,  which  related  to  this  subject, 
and  tacitly  gave  her  assent  to  the  whole  ordinance  of 


THE   ORDINANCE   OF   1787.  7 

1787.  A  few  days  after  the  execution  of  the  deed  of 
cession  by  Virginia,  at  the  instance  of  Mr.  Jefferson,  a 
committee  was  raised,  consisting  of  Thomas  Jefferson, 
of  Va.,  Samuel  Chase,  of  Maryland,  and  David  Howell, 
of  Rhode  Island,  for  the  purpose  of  organizing  and  pro 
viding  for  the  Government  of  the  newly  acquired  terri 
tory.  Mr.  Jefferson,  as  chairman  of  the  committee, 
made  a  report,  now  to  be  seen  in  his  handwriting 
among  the  archives  of  Congress  in  the  Department  of 
State  at  Washington.  It  provides,  "  that  the  territory 
ceded  or  to  be  ceded  by  individual  States  to  the  United 
States,"  "  shall  be  formed  into  distinct  States,"  the 
names  of  which  were  given,  and  the  boundaries  defined ; 
and  the  divisions  thus  made  contemplated  and  embraced 
all  the  western  territory  lying  between  the  Florida 
and  Canada  lines.  That  is,  it  included  the  territory 
which  had  been  "  ceded"  to  the  northwest  of  the 
Ohio  River,  and  that  "  to  be  ceded"  to  the  south 
west  of  that  River,  or  elsewhere,  by  individual  States 
to  the  United  States.  It  also  provided  for  a  temporary 
or  Territorial  Government;  authorized  the  adoption  of 
the  laws  of  any  other  State :  to  have  a  representative 
on  the  floor  of  Congress,  with  the  right  of  debating  but 
not  of  voting,  &c.  &c.,  until  the  inhabitants  should 
amount  to  20,000,  after  which  it  authorized  the  forma 
tion  of  a  permanent  or  State  government;  and  for  its 
admission  into  the  Union:  Provided  both  the  Terri 
torial  and  State  Governments  should  be  established  on 
the  following  principle  as  a  basis,  which  were  declared 
to  be  articles  of  a  charter  of  compact,  to  stand  as  funda 
mental  constitutions  between  the  thirteen  original 
States  and  the  new  States  to  be  formed,  unalterable 
but  by  the  joint  consent  of  the  United  States,  and  the 
particular  State  with  which  such  alteration  was  pro 
posed  to  be  made:  1st.  That  they  shall  forever  remain 


8  THE   HISTOEY   OF 

a  part  of  the  United  States  of  America.  2d.  That  in 
their  persons,  property,  and  territory,  they  shall  be 
subject  to  the  Government  of  the  United  States  in 
Congress  assembled,  and  to  the  articles  of  confederation 
in  all  those  cases  in  which  the  original  States  shall  be 
so  subject.  3d.  That  they  shall  be  subject  to  pay  a 
part  of  the  Federal  Debt,  contracted  or  to  be  contracted, 
to  be  apportioned  on  them  by  Congress  according  to 
the  same  common  rule  and  measure  by  which  apportion 
ment  thereof  shall  be  made  on  the  other  States.  4th. 
That  their  respective  Governments  shall  be  republican  in 
form,  and  shall  admit  no  person  to  be  a  citizen  who  holds 
any  hereditary  title.  5th.  That  after  the  year  1800  of 
the  Christian  era,  there  shall  be  neither  slavery  nor  in 
voluntary  servitude  in  any  of  the  said  States,  otherwise 
than  in  punishment  of  crimes  whereof  the  party  shall 
have  been  duly  convicted  to  have  been  personally  guilty. 

Before  proceeding  further  in  making  references  and 
quotations,  I  must  inform  those  who  have  not  had 
occasion  to  examine  the  Journals  of  the  Old  Congress, 
that  they  are  so  imperfectly  made  out,  with  so  many 
omissions,  that  it  is  impossible  to  trace  the  proceedings, 
and  fully  to  understand  what  took  place  in  forming  the 
Ordinance  or  any  other  measure  of  the  kind.  It  may 
also  be  well  to  state,  in  order  to  enable  all  to  under 
stand  the  Journals,  that  the  Old  Congress,  under  the 
Articles  of  Confederation,  voted  by  States;  that  to 
entitle  a  State  to  vote  it  must  have  at  least  two  mem 
bers  present;  and  that  for  the  adoption  of  a  measure,  at 
least  seven  States  (the  majority  of  the  whole  number  of 
the  thirteen  States)  must  vote  in  favor  of  it :  indeed  in 
some  important  cases  nine  States  were  required. 

Previous  proceedings  are  to  be  inferred  from  the  fol 
lowing  entry  in  the  Journals,  though  I  have  not  been 
able  to  find  them.  April  19,  178-1,  "  Congress  took 


THE   ORDINANCE   OF   1787.  9 

into  consideration  the  report  of  a  committee  consisting 
of  Mr.  Jefferson,  Mr.  Chase,  and  Mr.  Howell,  to  whom 
was  recommitted  their  report  of  a  plan  for  a  temporary 
Government  of  the  Western  Territory ;  when  a  motion 
was  made  by  Mr.  Spaight,  seconded  by  Mr.  Read,  to 
strike  out  the  following  paragraph:  'That  after  the 
year  1800  of  the  Christian  era  there  shall  be  neither 
slavery  nor  involuntary  servitude  in  any  of  the  said 
States,  otherwise  than  in  punishment  of  crimes  whereof 
the  party  shall  have  been  convicted  to  have  been  per 
sonally  guilty.'  And  on  the  question,  shall  the  words, 
moved  to  be  struck  out,  stand.  The  yeas  and  nays  being 
required  by  Mr.  Howell : 

New  Hampshire — Mr.  Foster,  ay  ;  Mr.  Blanchard,  ay      .  Ay. 

Massachusetts — Mr.  Gerry,  ay ;  Mr.  Partridge,  ay  .  Ay. 

Connecticut — Mr.  Sherman,  ay;  Mr.  Wadsworth,  ay        .  Ay. 

New  York — Mr.  De  Witt,  ay ;  Mr.  Paine,  ay          .         .  Ay. 

Rhode  Island- — Mr.  Ellery,  ay  ;  Mr.  Howell,  ay       .         .  Ay. 

New  Jersey — Mr.  Dick,  ay 

Pennsylvania — Mr.  Mifflin,  ay;  Mr.  Montgomery,  ay; 

Mr.  Handy,  ay Ay. 

Maryland—  Mr.  McIIenry,  no ;  Mr.  Stone,  no          .         .  No. 

Virginia — Mr.  Jefferson,  ay  ;  Mr.  Hardy,  no;  Mr.  Mer 
cer,  no  .........  No. 

North  Carolina — Mr.  Spaight,  no;  Mr.  Williamson,  ay  Divided. 

South  Carolina — Mr.  Read,  no  ;  Mr.  Beresford,  no          .  No. 

So  the  question  was  lost  and  the  words  were  struck 


out." 


That  is,  although  there  were  six  States  in  favor  of 

retaining  the  clause,  out  of  the  ten  States  that  voted,  it 

was  nevertheless  struck  out,  because  there  was  wanted 

the  vote  of  one  more  State  to  make  a  majority  of  all  the 

•  States  then  in  the  confederation. 

Congress  resumed  the  consideration  of  the  plan  of  the 
Government  of  the  Territories,  from  day  to  day,  until 
April  23,  1784,  when  it  was  agreed  to,  as  amended, 


10  THE   HISTORY   OF 

with  the  concurrence  of  every  State  (except  Delaware 
and  Georgia,  not  represented),  and  of  every  member  of 
Congress  except  the  two  from  South  Carolina. 

The  plan  of  Government  thus  adopted  by  Con 
gress  was  founded  on  one  reported  by  Mr.  Jefferson, 
with  some  alterations.  The  chief  of  these  consisted  in 
striking  out  the  clauses  prohibiting  slavery,  as  seen 
above,  inhibiting  citizens  from  holding  any  hereditary 
title,  and  giving  names  and  boundaries  to  the  new 
States ;  and  also  in  adding  to  the  fundamental  articles  of 
compact,  as  drawn  by  Mr.  Jefferson,  that  the  new  States 
should  in  no  case  interfere  with  the  primary  disposal  of 
the  soil  by  the  United  States,  that  no  tax  should  be 
imposed  on  lands  the  property  of  the  United  States, 
and  that  the  lands  of  non-residents  were  never  to  be 
taxed  higher  than  the  lands  of  residents.  With  these 
exceptions,  the  plan  adopted  by  Congress,  April  23, 1784, 
was  substantially  the  same,  and  for  the  most  part,  in 
the  words  of  the  one  submitted  to  Congress  by  Mr.  Jef 
ferson.  Fourteen  days  after  its  passage,  viz:  May  7, 

1784,  Mr.  Jefferson  was  appointed  minister  to  France 
and  vacated  his  seat  in  Congress. 

The  next  notice  of  the  subject  I  have  been  able  to 
find  in  the  journals  of  Congress,  is  on  the  16th  of  March, 

1785,  when  "a  motion  was  made  by  Mr.  King,  seconded 
by  Mr.  Ellery,  that  the  following  proposition  be  com 
mitted  :  that  there  shall  be  neither  slavery  nor  involun 
tary  servitude  in  any  of  the    States    described  in  the 
resolve  of  Congress  of  the  23d  of  April,  1784,  other 
wise  than  in  punishment  of  crimes  whereof  the  party 
shall  have  been  personally  guilty ;  and  that  this  regula 
tion  be  an  article  of  compact,  and  remain  a  fundamental 
principle  of  the  Constitutions  between  the  thirteen  origi 
nal  States  and  each  of  the  States  described  in  the  said 
resolve  of  the  23d  of  April,  1784." 


THE   ORDINANCE   OF   1787.  11 

On  the  question  for  commitment,  the  yeas  and  nays 
being  required  by  Mr.  King,  eight  States,  viz :  New 
Hampshire,  Massachusetts,  Rhode  Island,  Connecticut. 
New  York,  New  Jersey,  Pennsylvania,  and  Maryland 
voted  in  the  affirmative ;  and  three  States,  viz :  Virginia, 
North  Carolina,  and  South  Carolina  voted  in  the  nega 
tive.  Georgia  had  but  one  member  present,  and  of  course, 
her  vote  was  not  counted.  To  what  committee  this 
motion  was  referred,  or  what  further  wras  done  on  the 
subject  is  not  stated  in  the  journal. 

On  the  7th  of  July,  1786,  this  entry  is  made:  "  Con 
gress  took  into  consideration  a  report  of  a  grand  com 
mittee,  to  whom,  among  other  things,  was  referred  a 
motion  of  Mr.  Monroe  respecting  the  cession  of  Western 
Territory,  and  forming  the  same  into  States;"  when  it  was 
"  resolved  that  it  be  and  is  hereby  recommended  to  the 
Legislature  of  Virginia,  to  take  into  consideration  their 
act  of  cession,  and  revise  the  same,  so  far  as  to  make 
such  a  division  of  the  territory  of  the  United  States 
lying  northwardly  and  westwardly  of  the  river  Ohio, 
into  distinct  and  republican  States,  not  more  than  five 
nor  less  than  three,"  &c. 

The  next  entry  in  the  journal  which  has  reference  to 
the  subject  is  under  date  of  September  29,  1786,  when. 
"  Congress  proceeded  in  the  consideration  of  an  Ordi 
nance  for  the  government  of  the  Western  Territory, 
reported  by  Mr.  Johnson,  Mr.  Pinckney,  Mr.  Smith,  Mr. 
Dane,  and  Mr.  Henry."  On  the  4th  of  October  follow 
ing,  "  Congress  resumed  the  consideration  of  the  Ordi 
nance  for  the  government  of  the  Western  Territory." 
On  May  9,  1787,  "  Congress  proceeded  in  the  second 
reading  of  the  Ordinance  for  the  government  of  tha 
Western  Territory."  On  May  10,  1787,  the  third  read 
ing  was  postponed.  On  July  11,  1787,  "  the  committee 
consisting  of  Mr.  Carrington,  Mr.  Dane,  Mr.  R.  H.  Lee, 


12  THE   HISTOEY    OF 

Mr.  Kean,  and  Mr.  Smith,  to  whom  was  referred  the 
report  of  a  committee  touching  the  temporary  govern 
ment  of  the  Western  Territory,  reported  an  Ordinance 
for  the  government  of  the  Territory  of  the  United  States 
northwest  of  the  river  Ohio;  which  was  read  a  first 
time." 

The  next  day  it  was  read  a  second  time,  and  the  day 
following,  July  13,  1787,  it  was  read  a  third  time  and 
passed  by  the  following  vote  :  "  the  yeas  and  nays  being 
required  by  Mr.  Yates. 

Massachusetts — Mr.  Holton,  ay ;  Mr.  Dane,  ay        .         .  Ay. 
New  York — Mr.  Smith,  ay;  Mr.  Haring,  ay  ;  Mr.  Yates,  no  Ay. 

New  Jersey — Mr.  Clarke,  ay ;  M.  Scheurman,  ay     .         .  Ay. 

Delaware — Mr.  Kearney,  ay  ;  Mr.  Mitchell,  ay        .         .  Ay. 
Virginia — Mr.  Grayson,   ay ;   Mr.  R    EL  Lee,  ay;  Mr. 

Carrington,  ay    ........  Ay: 

North  Carolina — Mr.  Blount,  ay  ;  Mr.  Hawkins,  ay         .  Ay. 

South  Carolina — Mr.  Kean,  ay ;  Mr.  Huger,  ay      .         .  Ay. 

Georgia — Mr.  Few,  ay  ;  Mr.  Pierce,  ay  Ay. 

So  it  was  resolved  in  the  affirmative." 

The  Ordinance  as  it  thus  finally  passed  Congress  with 
such  extraordinary  unanimity,  first  provides  rules  for 
the  inheritance  and  conveyance  of  property ;  it  then 
provides  for  the  appointment  of  the  Governor,  Judges, 
and  other  officers  of  the  temporary  or  territorial  govern 
ments,  and  defines  their  powers  and  duties ;  it  also  pro 
vides  for  the  election  of  a  delegate  to  Congress,  to  have 
the  right  of  debate  but  not  of  voting  during  the  tempo 
rary  government.  It  then  goes  on  to  say,  "  for  extend 
ing  the  fundamental  principles  of  civil  and  religious 
liberty,"  &c.  "  It  is  hereby  ordained  and  declared,  by  the 
authority  aforesaid,  that  the  following  articles  shall  be 
considered  as  articles  of  compact  between,  the  original 
States,  and  the  people  and  States  in  the  said  territory, 
and  forever  remain  unalterable  unless  by  common  con- 


THE    ORDINANCE    OF   1787.  13 

sent."  Of  these  the  first  article  secures  the  religious 
freedom  of  the  inhabitants:  the  second  secures  to  them 
the  right  of  the  writ  of  habeas  corpus,  the  trial  by  jury, 
the  inviolability  of  contracts,  &c. :  the  third  declares 
that  schools  and  the  means  of  education  shall  be  en 
couraged,  and  good  faith  shall  be  observed  towards  the 
Indians :  the  fourth  provides  that  the  Territories  shall 
remain  forever  a  part  of  the  United  States ;  pay  their 
just  proportion  of  the  Federal  debts  and  expenses ;  not 
interfere  with  the  primary  disposal  of  the  soil  by  the 
United  States,  nor  tax  non-resident  proprietors  higher 
than  residents ;  and  that  the  navigable  waters  leading 
into  the  Mississippi  and  St.  Lawrence  rivers,  and  the 
carrying  places  between  the  same,  shall  be  common 
highways  and  forever  free  to  all  the  citizens  of  the  United 
States :  the  fifth  provides  for  a  division  of  the  Territory 
into  States  and  their  admission  into  the  Union  when 
they  shall  have  60,000  inhabitants,  on  an  equal  footing 
with  the  other  States,  provided  their  constitutions  be 
republican;  and  the  sixth  ordains  that  there  shall 
neither  be  slavery  nor  involuntary  servitude  in  the  said 
Territory,  otherwise  than  in  the  punishment  of  crimes 
whereof  the  party  shall  have  been  duly  convicted :  Pro 
vided  always  that  any  person  escaping  into  the  same 
from  whom  labor  or  service  is  lawfully  claimed  in  any 
one  of  the  original  States,  such  fugitive  may  be  lawfully 
reclaimed  and  conveyed  to  the  person  claiming  his  or 
her  labor  or  services  as  aforesaid.  There  is  then  added 
a  repeal  of  the  resolutions  of  April  23,  1784. 

A  comparison  of  the  plan  of  government,  as  drawn 
by  Mr.  Jefferson,  and  that  finally  adopted  by  Congress, 
both  of  which  I  have  endeavored  briefly  to  sketch,  will 
show — 1st.  That  with  Mr.  Jefferson,  originated  the  idea 
of  a  compact  between  the  original  States  and  the  new 
States  to  be  formed  out  of  the  territories,  unalterable 


14  THE   HISTORY   OF 

but  by  their  joint  consent.  2nd.  That  his  plan  of  go 
vernment  or  ordinance  was  intended  to  apply  to  all  ter 
ritory,  ceded  or  to  be  ceded  by  individual  States  to  the 
United  States ;  while  the  ordinance  passed  by  Congress 
confined  it  to  territory  previously  acquired — that  is  to 
the  territory  northwest  of  the  river  Ohio.  3d.  That 
by  Mr.  Jefferson's  plan  or  ordinance  the  territory  was 
to  be  formed  into  distinct  States,  whose  names  and 
boundaries  were  designated;  with  a  provision  that  they 
might  form  a  temporary  government ;  adopt  the  consti 
tution  and  laws  of  any  one  of  the  original  States,  such 
laws  being,  however,  subject  to  alteration  by  themselves; 
have  a  representation  in  Congress,  though  without  a 
vote ;  and  when  they  should  have  20,000  inhabitants, 
form  a  permanent  State  government,  and  be  admitted  into 
the  Union,  on  an  equal  footing  with  the  original  States — 
all  which  provisions  were  those  which  formed  substan 
tially  the  ordinance  as  finally  adopted  by  Congress, 
though  it  was  so  far  qualified,  that  a  State  could  not 
claim  a  right  of  admission  into  the  Union  until  it  had 
60,000  inhabitants ;  to  which  were  added  in  more  de 
tail  the  form  of  territorial  government  and  some  specific 
regulations  in  regard  to  the  inheritance  and  conveyance 
of  property.  4th.  That  to  the  provisions  which  Mr. 
Jefferson  originated  and  inserted  in  his  plan,  making  it 
a  matter  of  compact  that  the  new  States  should  forever 
remain  part  of  the  United  States;  be  subject  to  the  go 
vernment  of  Congress,  and  the  articles  of  confederation ; 
bear  their  share  of  the  federal  debts ;  adhere  to  a  re 
publican  form  of  government,  and  admit  no  one  to  citi 
zenship  who  should  hold  an  hereditary  title — to  these 
the  Ordinance  as  adopted  by  Congress  added  provisions 
to  protect  the  public  lands  from  interference  and  taxa 
tion  ;  to  preserve  as  highways  some  of  the  great  rivers  ; 
and  to  enlarge  the  enumeration  of  the  personal  rights 


THE   ORDINANCE   OF   1787.  15 

of  the  citizen.  5th.  That  the  most  important  clause  in 
Mr.  Jefferson's  plan — that  which  provided  that  "  after 
the  year  1800  of  the  Christian  era  there  should  be 
neither  slavery,  nor  involuntary  servitude,  in  any  of  the 
said  States,  otherwise  than  in  punishment  of  crimes, 
whereof  the  party  shall  have  been  duly  convicted  to 
have  been  personally  guilty" — was  adopted  by  Congress 
with  no  change,  except  the  omission  of  the  postponement 
of  its  operation  until  1800,  and  the  introduction  of  the 
clause  for  the  restoration  of  fugitive  slaves. 

Some  of  the  above  particulars  would  not  have  been 
stated  so  fully  but  for  a  claim  which  has  been  made  to 
the  authorship  of  the  ordinance  on  behalf  of  Nathan  Dane, 
of  Massachusetts.  To  show  a  misconception  somewhere, 
and  in  a  word,  the  groundless  character  of  this  claim,  it 
is  pnly  necessary  to  state  that  Mr.  Dane  took  his  seat  in 
Congress  for  the  first  time,  on  the  17th  of  November, 
1785,  more  than  eighteen  months  after  the  ordinance 
had  been  conceived  and  brought  forth  by  its  great  au 
thor,  and  been  adopted  by  Congress,  with  certain  alter 
ations,  the  principal  one  of  which,  on  motion  of  Mr. 
King,  had  been  in  effect  cancelled  and  the  original  pro 
vision  restored  nearly  in  the  words  of  Mr.  Jefferson, 
eight  months  before  Mr.  Dane  took  his  seat  in  Con 
gress.  The  Journals  of  Congress  do  not  show  that  Mr. 

fDane  had  any  particular  part  in  forming  the  ordi 
nance,  beyond  serving  on  two  of  the  several  committees 

^to  which  it  was  referred.  What  he  did  on  those  com 
mittees,  I  have  no  means  of  knowing.  He  may  have 
been  active  and  instrumental  in  working  into  the  ordi 
nance  his  favorite  provisions  about  titles  to  property  ; 
and  thus  his  phrase  may  be  rendered  intelligible,  where 
he  says  that  he  had  "formed  it  mainly  from  the  laws  of 
Massachusetts." 

Having  given  this  sketch  of  the  origin  and  formation 


16  THE   HISTORY   OF 

of  the  ordinance,  I  will  now  trace  the  history  of  its 
practical  operation,  to  which  I  will  add,  the  local  op 
position  it  encountered,  and  the  general  assent  and 
sanction  it  received  from  Congress  and  from  the  Union. 
To  form  a  correct  idea  of  what  passed  in  relation  to 
the  ordinance,  it  is  necessary  to  recall  to  mind  the 
efforts  made  by  France  to  encompass  and  restrict  the 
western  frontiers  of  the  English  Colonies,  by  establish 
ing  a  cordon  of  forts  with  surrounding  settlements  con 
necting  its  colonies  of  Louisiana  and  Canada ;  and  that 
France  claimed  and  occupied  much  of  the  territory  to 
the  eastward  of  the  Mississippi  River,  prior  to  1763, 
when  it  was  ceded  to  England ;  after  which  it  formed 
parts  of  the  English  slave-holding  colonies.  When  these 
facts  are  considered,  it  will  not  excite  surprise  that  the 
inhabitants  of  the  settlements,  thus  formed  and  governed, 
should  have  been  favorable  to  the  existence  of  slavery, 
as  it  was  established  by  the  French  laws  of  Louisiana, 
and  by  the  laws  of  the  English  Colonies  to  which  the 
country  east  of  the  Mississippi  River  became  attached 
by  the  cession  of  France  in  1763.  From  the  first  settle 
ment,  therefore,  by  the  white  race,  of  the  country  north 
west  of  the  Ohio  River,  by  the  French  at  and  in  the 
vicinity  of  Kaskaskia,  about  the  year  1682,  and  by  a 
company  of  emigrants  from  Virginia  about  one  hundred 
years  subsequently,  slavery  had  existed,  and  was  as  law 
fully  established  as  it  had  been  under  the  laws  of  Loui 
siana  or  of  those  of  Virginia.  It  was  the  knowledge  of 
this  existence  of  slavery,  and  his  known  opinion  in  favor 
of  a  prospective  rather  than  a  sudden  abolition,  that  in 
duced  Mr.  Jefferson  to  use  the  phrase  he  did  in  the 
ordinance — "  That  after  the  year  1800  of  the  Christian 
era  there  shall  be  neither  slavery  nor  involuntary  servi 
tude  in  any  of  the  said  States,  &c."  This  provision 
recognized  the  existence  of  slavery,  and  contemplated 


THE   ORDINANCE   OF   1787.  17 

the  toleration  of  it  in  those  States  for  sixteen  years  (he 
drew  the  ordinance  in  1784),  when  it  was  to  cease. 
From  this  it  is  clearly  seen  that  the  illustrious  author 
of  the  ordinance  intended  it  to  abolish  the  then  existing 
state  of  slavery,  as  well  as  to  prohibit  its  ever  being 
tolerated  in  the  country  northwest  of  the  Ohio  River. 

To  these  reasons  for  the  existence  then  of  negro  slavery, 
may  be  added  the  fact  of  Virginia  having  granted  land 
to  many  of  her  citizens  who  had  served  in  the  wars 
carried  on  against  the  Indians,  and  in  this  way  having 
had  opportunities  of  seeing  the  country  to  the  north 
west  of  the  Ohio,  and  being  pleased  with  it,  they  settled 
on  the  lands  thus  granted  to  them.  In  this  way  the 
first  settlers,  both  of  French  and  English  descent,  were 
from  slaveholding  colonies,  and  the  laws  of  those  colo 
nies  having  been  extended  to,  and  being  in  full  opera 
tion  at  the  time  of  the  adoption  of  the  ordinance,  it  was 
to  have  been  expected  that  its  provision  for  the  prohi 
bition  of  slavery  would  not  be  popular  with  many  of 
them.  These  feelings  of  disapprobation  at  once  evinced 
themselves  by  the  larger  and  more  intelligent  slave 
holders  removing  across  the  river  into  Louisiana,  and 
taking  with  them  their  slaves,  to  prevent  their  being 
emancipated  by  the  Ordinance.  The  poorer  and  less  in 
telligent  masters,  each  owning  but  a  very  few  slaves, 
being  ignorant  of  the  English  language  and  laws,  and 
being  also  cut  oiF  from  a  knowledge  of  passing  events, 
by  there  being  then  no  mails  running  to  their  remote 
settlements,  continued  to  hold  and  to  treat  their  late 
slaves  as  if  the  Ordinance  had  not  emancipated  them. 
This  state  of  things  continued  for  a  long  time,  in  conse 
quence  of  the  ignorance  of  the  negroes  of  the  English 
language  and  of  the  mode  of  obtaining  their  rights,  and 
from  the  fear  of  punishment  if  they  attempted  it,  and 
also,  from  the  odium  which  attached  to  those  who  should 
2 


18  THE   HISTORY   OF 

aid  them.  To  this  should  be  added,  that  many  of  the 
officers  in  whose  hands  the  law  had  placed  the  power, 
were  themselves  claimants  of  the  negro  services,  and 
interested  in  continuing  the  then  existing  state  of  things. 
The  long  and  extraordinary  acquiescence  in  the  contin 
uance  of  the  bondage  of  the  French  slaves  (as  they  were 
called)  encouraged  those  who  can  always  find  reasons 
for  doing  what  will  promote  their  own  immediate  in 
terest,  or  what  they  like  to  do,  to  set  up  a  right  to  the 
French  negroes'  services ;  some  contending  for  it  under 
the  treaty  of  1763,  and  some  under  the  terms  of  cession 
from  Virginia. 

But  it  is  useless  to  expose  or  dwell  longer  on  the 
errors  of  these  prejudiced  and  interested  partisans.  It 
is  enough  to  confute  and  silence  them,  to  recite  the 
facts  that  the  highest  judicial  tribunals  of  individual 
States  and  of  the  Federal  Government,  have  decided 
and  put  the  question  at  rest,  that  slaves  cannot  be  law 
fully  held  in  the  country  northwest  of  the  Ohio  River. 
At  an  early  period,  it  was  so  decided  by  the  Supreme 
Court  of  Indiana ;  afterwards,  a  similar  decision  was 
made  by  the  Supreme  Courts  of  Missouri  and  Illinois  ; 
and  in  1831  these  decisions  were  concurred  in  and  con 
firmed  by  the  highest  judicial  authority  of  the  United 
States.  A  doubt  can  no  longer  exist,  that  such  a  de 
cision  would  have  been  made  at  any,  even  the  earliest 
period  after  the  adoption  of  the  ordinance,  if  the  ques 
tion  had  been  brought  before  the  judiciary.  Of  course, 
the  continuance  of  the  remnant  of  French  slaves  for 
so  long  a  time  in  Illinois,  arose  from  the  fact  of  its 
being  quietly  acquiesced  in,  and  not  brought  to  the 
decision  of  the  Courts  of  justice.  If  the  question  had 
ever  been  brought  before  me,  as  Governor  of  the  State, 
I  would  not  have  hesitated  for  a  moment  to  decide,  and, 
if  necessary  to  have  enforced  the  decision,  that  slavery 


THE   ORDINANCE   OF   1787.  19 

did  not  legally  exist  in  Illinois,  and  of  course  all  held  in 
service,  as  such,  were  entitled  to  their  freedom.  This 
opinion  I  expressed  in  my  Inaugural  Address,  and  in 
messages  to  the  Legislature. 

Although  the  ordinance,  from  neglect  to  enforce  it, 
was  not  made  available  for  a  considerable  time,  as  it 
respected  the  French  negroes  held  in  servitude,  it  went 
into  immediate  operation  from  its  adoption,  so  far  as  to 
exclude  the  further  introduction  of  slaves  into  Illinois. 
No  slaves  were  brought  by  those  who  acquired  military 
lands  from  Virginia,  or  who  were  induced  by  other  con 
siderations  to  emigrate  to  the  northwestern  territory, 
from  a  conviction  that  they  would  become  free  under 
the  Ordinance.  With  the  exception  therefore  of  some 
hundreds  of  French  negroes  who  remained  in  the  coun 
try,  and  continued  in  bondage  for  a  time  in  violation  of 
the  Ordinance,  that  instrument  effected  the  object  of  its 
enlightened  and  benevolent  author  in  excluding  slave 
emigrants,  and  making  a  non-slaveholding  State  of  Illi 
nois,  and  of  all  the  other  States  formed  out  of  the 
northwestern  territory. 

In  addition  to  the  causes  already  stated  for  creating 
a  prejudice  against  the  provision  of  the  Ordinance,  pro 
hibiting  slavery,  many  persons,  particularly  in  Indiana 
and  Illinois,  had  their  prejudices  further  increased  by 
their  contiguity  to  slave-holding  districts  of  country, 
and  the  opportunities  furnished  by  this,  as  well  as  by 
the  numerous  emigrants  who  passed  through  them  on 
their  way  to  Missouri,  to  mingle  and  hear  such  re 
presentations  as  were  calculated  to  dissatisfy  them  with 
the  prohibitory  clause  in  the  Ordinance.  To  this  must 
be  added,  as  a  further  and  more  powerful  influence, 
the  fact  that  the  high  and  influential  territorial  officers 
were  from  slaveholding  States,  and  were  not  only  the 
advocates,  but  exerted  their  potent  influence  to  get  the 


20  THE   HISTOKY   OF 

prohibitory  clause  repealed  by  Congress,  if  possible;  if 
not,  to  get  it  so  modified  as  to  admit  of  the  holding  of 
slaves,  at  least  for  a  limited  time. 

These  various  influences  operated  to  create  dissa 
tisfaction,  particularly  with  the  partisans  of  the  ter 
ritorial  officers,  and  such  citizens  as  were  interested 
in,  or  were  under  the  influence  of  the  former  system 
of  servitude,  and  of  course  of  that  class  of  men  to  be 
found  everywhere,  who  delight  in  exercising  the  rights 
and  privileges  of  masters.  All  these*  causes  produced 
excitement,  and  had  their  effect  in  elections,  and  re 
peatedly  showed  themselves  in  the  form  of  petitions 
from  the  people  and  the  legislatures  to  Congress,  ask 
ing  a  repeal  or  modification  of  the  clause  of  the  Ordi 
nance  prohibiting  slavery.  To  these  applications,  Con 
gress  uniformly  and  decidedly  refused  its  assent,  and 
sustained  the  prohibitory  clause  of  the  Ordinance.  As 
instances  of  this,  I  will  state,  that  in  March,  1803,  the 
celebrated  John  Randolph,  of  Virginia,  as  chairman  of 
a  committee  of  the  House  of  Representatives  of  Con 
gress,  to  which  one  of  these  petitions  was  referred,  asking 
the  suspension  of  the  provision  in  the  ordinance  pro 
hibiting  slavery,  made  a  report  against  it,  which  was 
concurred  in  by  the  House.  In  this  report  the  following 
strong  and  highly  approbatory  language  is  used  in  rela 
tion  to  the  ordinance — "That  the  rapid  population  of 
the  State  of  Ohio  sufficiently  evinced,  in  the  opinion  of 
your  committee,  that  the  labor  of  slaves  is  not  necessary 
to  promote  the  growth  and  settlement  of  colonies  in 
that  region:  That  this  labor,  demonstrably  the  dearest 
of  any,  can  only  be  employed  to  advantage  in  the  culti 
vation  of  products  more  valuable  than  any  known  to 
that  quarter  of  the  United  States :  That  the  committee 
deem  it  highly  dangerous  and  inexpedient  to  impair  a 
provision  wisely  calculated  to  promote  the  happiness 


THE   OKDINANCE   OF   1787.  21 

and  prosperity  of  the  northwestern  country,  and  to  give 
strength  and  security  to  that  extensive  frontier.  In  the 
salutary  operation  of  this  sagacious  and  benevolent  re 
straint,  it  is  believed  that  the  inhabitants  of  Indiana 
will,  at  no  distant  day,  find  ample  remuneration  for  a 
temporary  privation  of  labor  and  of  emigration." 

In  March,  1804,  another  report  was  made,  on  a  similar 
application  from  Indiana,  by  a  committee  of  the  House, 
of  which  Mr.  Rodney,  of  Delaware,  was  chairman,  in 
which  a  suspension  for  ten  years  of  the  anti-slavery  pro 
vision  was  recommended,  on  the  condition  that  the  de 
scendants  of  all  such  slaves  should,  if  males,  be  free  at 
the  age  of  25  years,  and,  if  females,  at  the  age  of  21 
years.  In  this  report  the  House  refused  to  concur.  In 
February,  1806,  another  report  was  made  recommending 
a  suspension  for  ten  years,  by  a  committee  of  which  Mr. 
Garnett,  of  Virginia,  was  chairman,  with  a  similar  result — 
the  non-concurrence  of  the  House.  In  February,  1807, 
a  committee  of  the  House,  of  which  Mr.  Parke,  Dele 
gate  from  Indiana,  was  chairman,  made  still  another  re 
port  in  favor  of  suspending  the  prohibitory  clause  for 
ten  years,  in  which  the  House  again  refused  to  concur. 
By  what  majorities  these  disapproving  votes  were  given, 
is  not  stated  on  the  Journals  of  the  House  of  Repre 
sentatives.  But  in  November,  1807,  Mr.  Franklin,  of 
North  Carolina,  as  chairman  of  a  committee  of  the 
Senate  of  the  United  States,  to  which  had  been  referred 
a  petition  from  the  Legislative  Council  and  House  of 
Representatives  of  Indiana  Territory,  and  also  a  remon 
strance  against  the  same  from  the  citizens  of  Clark 
County  in  said  Territory,  made  a  report  against  the  sus 
pension  of  the  prohibitory  clause  of  the  ordinance,  which 
was  concurred  in  by  the  Senate  without  a  dissenting 
voice. 

In  alluding  to  these  proceedings  of  Congress,  Senator 


22  THE   HISTORY  OF 

Benton,  in  a  speech  he  made  in  the  Senate  of  the  United 
States,  on  the  10th  of  June,  1850,  said— "Thus  five 
times  in  four  years  the  respective  Houses  of  Congress 
refused  to  admit  even  a  temporary  extension  or  rather 
re- extension  of  slavery  into  Indiana  Territory,  which 
had  been,  before  the  ordinance  of  1787,  a  slave  territory, 
holding  many  slaves  at  Vincennes.  These  five  refusals 
to  suspend  the  ordinance  of  '87  were  so  many  confirma 
tions  of  it.  All  the  rest  of  the  action  of  Congress  on  the 
subject,  was  to  the  same  effect  or  stronger.  The  Mis 
souri  Compromise  line  was  a  curtailment  of  slave  terri 
tory;  the  Texas  annexation  resolution  was  the  same; 
the  Ordinance  of  '87  itself,  so  often  confirmed  by  Con 
gress,  was  a  curtailment  of  slave  territory — in  fact  its 
actual  abolition  ;  for  it  is  certain  that  slavery  existed  in 
fact  in  the  French  settlement  of  the  Illinois,  at  that 
time ;  and  that  the  Ordinance  terminated  it.  I  act  then," 
he  said,  "in  conformity  to  the  long  uniformly  established 
policy  of  Congress,  as  well  as  in  conformity  to  my  own 
principles,  in  refusing  to  vote  for  the  extension  of 
slavery." 

These  repeated  refusals  of  Congress  to  abrogate  or 
alter  the  clause  prohibiting  slavery,  the  most  important 
of  the  great  fundamental  articles  of  compact,  established 
by  the  Ordinance  between  the  original  States  and  those 
to  be  formed  out  of  the  Northwest  Territory,  induced 
its  disappointed  advocates  in  Indiana  (then  including 
Illinois),  in  the  year  1807,  to  authorize  by  a  law  of  the 
Territory  the  indenture  of  slaves  over  fifteen  years  of 
age,  for  a  specified  term  of  years.  In  many  cases  it 
was  extended  in  practice  to  ninety-nine  years,  or  for  a 
term  which  was  intended  to  include  the  life  of  the 
party  indentured.  As  a  slave  is  not  competent  by  law 
to  make  an  agreement  or  contract,  he  had  first  to  be 
made  free  before  he  could  enter  into  the  indenture. 


THE   ORDINANCE   OF   1787.  23 

But  tins  was  made  a  mere  matter  of  form,  being  done 
simultaneously,  and  the  master  taking  care  that  neither 
instrument  should  be  valid  until  the  other  was  executed. 
If  a  slave,  after  his  master  had  signed  his  instrument 
of  emancipation,  and  he  was  nominally  free,  should  re 
fuse  to  sign  his  indenture,  the  master  had  the  right  to 
send  him  out  of  the  State,  to  sell  him,  and  retain  over 
him  all  his  right  as  master.  The  indenture  for  a  term 
equivalent  to  the  duration  of  life,  would  not  apparently 
change  materially  the  condition  of  the  slave ;  but  it 
did  so  in  this,  that  his  condition  is  always  better  where 
there  are  but  few  slaves,  as  they  are  then  more  imme 
diately  under  the  care  and  protection  of  their  masters. 
But  above  all  the  hearts  of  parents,  who  are  indentured, 
find  an  inexpressible  pleasure  and  a  consoling  comfort 
from  the  knowledge  of  the  fact  that  their  children  will 
be  free ;  males  at  thirty,  and  females  at  twenty-eight 
years  of  age,  the  times  fixed  by  the  Indiana  law  author 
izing  indentures. 

It  may  be  well  to  a£f — as  an  incident  worth  men 
tioning,  particularly  as  showing  the  opinion  and  feel 
ing  that  had  their  influence  in  bringing  it  about — 
the  preamble  to  an  act  passed  by  the  Legislature  of 
Illinois  to  repeal  this  law  of  indenture,  which  repealing 
act  was  vetoed  by  the  Territorial  Governor ;  in  this  it 
is  stated  that,  "  whereas  the  act  of  the  Legislature  of 
this  Territory,  passed  the  17th  of  September,  1807,  is 
intended  to  introduce  and  tolerate  slavery,  under  the 
pretence  of  voluntary  servitude,  in  contravention  of  the 
paramount  law  of  the  land ;  and  whereas  such  a  system 
is  calculated,  in  its  operation,  not  only  to  prejudice  the 
interest  of  individuals,  but  also,  to  introduce  a  host  of 
people  of  color,  who  in  time  will  become  free,  and  at 
an  age  when  they  are  unafcle  to  support  themselves. 


2-i  THE   HISTORY   OF 

The  territory  consequently  cannot  be  benefited  by  such 
a  system,  the  adoption  of  which  is  contrary  to  the  Or 
dinance,  and  the  feelings  and  wishes  of  the  people  of  this 
territory." 

The  same  party,  with  the  same  views  which  led  them, 
as  described  above,  to  countenance  the  continuance  of 
the  French  servitude ;  to  petition  Congress  to  allow  them 
to  introduce  and  hold  other  slaves ;  and  to  authorize  the 
introduction  of  negroes  under  indentures,  induced  them 
to  pass  a  law  authorizing  the  hiring  of  slaves  from  other 
States  to  labor  at  the  salt  works  near  Shawneetown.  It 
is  needless  to  say  that  all  these  acts  were  a  violation, 
in  form  as  well  as  in  spirit,  of  the  Ordinance  of  1787. 

It  is  proper  I  should  add,  that  the  foregoing  remarks 
have  reference  to  that  part  of  the  Northwest  Territory 
which  is  now  included  in  the  States  of  Indiana  and 
Illinois.  Although  Virginia  granted  to  her  citizens 
more  land  for  military  services  in  the  country  now  em 
braced  by  the  State  of  Ohio,  than  in  any  other  part  of  the 
Territory  which  ftie  ceded  in  ll^t  to  the  United  States, 
yet  there  being  in  the  bounds  of  that  State  no  such  French 
population,  possessed  of  slaves,  but  on  the  contrary  its 
first  settlers  consisted  chiefly  of  associations  of  citizens 
from  non-slave  holding  States,  who  held  large  tracts  of 
land,  containing  altogether  many  hundreds  of  thousands 
of  acres,  of  which  the  principal  were — "  the  Connec 
ticut  western  reserve,"  bordering  on  Lake  Erie ;  "  the 
Ohio  land  company,"  composed  of  citizens  from  the 
New  England  States,  for  land  on  the  Ohio  and  Mus- 
kingum  Rivers;  and  "Symmes  and  his  associates"  of  New 
Jersey,  for  land*  on  the  Rivers  Ohio  and  the  Miamis. 
These  and  other  differences,  which  have  been,  pointed 
out,  in  the  origin  and  character  of  the  first  settlers  of 
the  east  and  west  portion*  of  the  Northwest  Territory, 


THE   ORDINANCE   OF   1787.  25 

will  explain  the  opposite  feelings  and  opinions  enter 
tained  by  them,  in  relation  to  the  clause  of  the  Ordi 
nance  prohibiting  slavery.  "NYe  have  seen  the  conduct 
of  Indiana  and  Illinois — that  of  Ohio  both  as  a  Terri 
tory  and  as  a  State,  showed  that  she  differed  from  them, 
and  approved  of  the  Ordinance  in  all  its  parts.  To  this 
it  should  be  added  that  Michigan  and  Wisconsin,  the 
remaining  portions  of  the  Northwest  Territory,  whose 
settlers  having  also  chiefly  emigrated  from  non-slave 
holding  communities,  both  native  and  foreign,  have 
concurred  with  Ohio  in  approving  the  Ordinance.  Iowa, 
too,  having  from  infancy  grown  up  under  the  Ordi 
nance,  which  had  been  extended  over  her  by  the  "  Mis 
souri  Compromise,"  and  California,  where  slavery  had 
been  inhibited  by  the  Spaniards  before  we  acquired  it, 
both  of  these  States  on  coming  into  the  Union  compli 
mented  the  Ordinance  by  adopting  its  peculiar  lan 
guage,  and  inscribing  it  in  their  constitution — "  That 
neither  slavery  nor  involuntary  servitude,  unless  for 
punishment  of  crimes,  sHall  ever  be  tolerated  in  these 
States." 

After  the  division  of  Indiana  into  two  territorial 
governments,  which  took  place  in  1809,  the  eastern  or 
Indiana  part,  not  being  as  much  under  the  influence  of 
the  pro-slavery  proclivities  as  the  western  or  Illinois 
portion,  the  contests  in  the  former  became  less  violent. 
This  continued  to  diminish  with  the  increase  of  popula 
tion,  which  came  chiefly  from  Ohio  and  the  Northern 
States,  until  two  or  three  years  before  Indiana  became 
a  State  (in  1816),  when  the  last  great  struggle  took  place, 
in  which,  although  the  territorial  officers  took  an  active 
part  in  favor  of  the  advocates  of  slavery,  the  result  was 
so  decisive  and  overwhelming,  in  favor  of  the  anti-slavery 
party,  as  to  have  the  effect  of  putting  down  the  supporters 
of  slavery,  and  an  end  to -the  slavery  question  in  Indiana. 


26  THE  HISTOEY   OF 

In  effecting  this,  the  most  prominent  and  influential  man 
was  Jonathan  Jennings,  who  served  as  a  Delegate  in 
Congress,  and  afterwards  as  Governor  of  the  State. 

In  Illinois,  which  was  separated  from  Indiana,  and 
organized  first  as  a  Territorial  Government  in  1809,  and 
then  as  a  State  Government,  and  was  admitted  into  the 
Union  in  1818,  the  strife  was  continued  with  more  or 
less  violence.  It  was  strongly  displayed  in  the  election 
of  the  convention  to  form  a  constitution  for  the  new 
State,  when  an  effort  was  made  before  the  people,  and 
a  still  greater  one,  in  the  Convention,  to  authorize  the 
toleration  of  slavery  in  the  State.  In  this  its  advocates 
failed,  but  not  despairing  of  ultimate  success,  they  con 
tinued  their  efforts  until  1822,  when  it  was  made  the 
controlling  question  in  the  election  of  that  year.  And 
although  I,  the  anti-slavery  candidate,  was  elected 
Governor,  the  Legislature  wanted  but  one  member  to 
have  a  majority  of  two-thirds  in  each  House,  in  favor  of 
submitting  the  question  to  the  people  whether  there 
should  be  a  convention  called  for  altering  the  constitu 
tion;  this  one  member  was  obtained  in  what  I  con 
sider  an  unprecedented  manner.  Thus  the  question 
was  submitted  to  the  people  under  the  influence  of  a 
two-thirds  vote  of  the  Legislature.  Under  the  provi 
sions  of  the  constitution  of  1818,  when  two  thirds  of 
the  members  of  each  House  of  the  Legislature  should 
submit  the  question  to  the  people,  if  a  majority  of  the 
voters  at  the  next  election  should  be  in  favor  of  it,  a 
convention  was  to  be  called  to  revise  the  constitution. 

The  introduction  of  slavery  was  not  openly  avowed 
by  all  the  advocates  of  a  convention,  as  the  object  in 
view,  but  it  was  well  known  to  be  so,  and  not  denied  by 
many,  though  there  were  certainly  other  objections  to 
the  constitution  of  1818,  which  had  their  influence  in 


THE   ORDINANCE   OF   1787.  27 

increasing  the  desire  for  a  convention  to  alter  it.  When 
this  question  came  before  the  people,  it  produced  pecu 
liarly  intense  excitement  always  attendant  on  the  agita 
tion  of  the  question  of  the  extension  of  slavery  ;  and 
which  in  this  case  was  increased  by  the  manner  in  which 
it  had  passed  the  Legislature ;  and  the  advantage  in 
tended  to  be  taken  of  a  temporary  inequality  in  the 
representation,  whereby  portions  of  the  State  favorable 
to  slavery  would  have  a  greater  influence  in  the  conven 
tion  than  they  were  justly  entitled  to.  Having  been 
placed  in  the  lead,  by  the  station  assigned  me,  and  my 
opinions  and  feelings  being  so  warmly  opposed  to  slavery 
as  to  make  me  leave  my  native  state  (Virginia),  I  soon 
placed  my  pen  and  exertions  in  requisition,  and  brought 
them  to  bear,  doing  all  I  could,  personally  and  officially, 
to  enlighten  the  people  of  Illinois,  and  prevent  their 
making  it  a  slave  holding  State.  I  trust  I  shall  meet 
with  indulgence  from  the  zeal  I  have  always  felt  in  the 
cause,  for  adding,  that  it  has  ever  since  afforded  me  the 
most  delightful  and  consoling  reflections,  that  the  abuse 
I  endured,  the  labor  I  performed,  and  the  anxiety  I  felt, 
were  not  without  their  reward :  and  to  have  it  conceded 
by  opponents  as  well  as  supporters,  that  I  was  chiefly 
instrumental  in  preventing  a  call  of  a  convention,  and 
making  Illinois  a  slave  holding  State.  We  were  sus 
tained  by  a  majority  of  about  1600  votes  of  the  people, 
at  the  general  election  in  August,  1824;  and  thus  ter 
minated  the  last  struggle,  the  last  effort  of  the  slave 
party,  to  defeat  the  wise  and  philanthropic  purposes  of 
the  Ordinance  of  1 787. 

It  would  not  be  doing  justice  to  the  Ordinance,  nor 
would  what  has  been  written  deserve  the  name  of  a 
hasty  sketch  of  its  history,  were  I  to  omit  to  add  some  of 
the  repeated  and  unprecedented  sanctions  it  has  received 
from  Congress  and  the  American  people.  We  have 


THE   HISTORY   OF 

seen  it  was  the  offspring  of  the  greatest  statesman  of 
our  country ;  and  no  one  can  fail  to  see  in  it  the  kin 
dred  political  features  of  its  elder  brother,  the  Declara 
tion  of  American  Independence.  It  has  been  shown 
with  what  extraordinary  unanimity  it  passed  the  old 
Congress — but  one  member  voting  against  it;  nor  was  his 
particular  objection  to  the  Ordinance  known.  He  had 
been  serving  in  the  convention  in  Philadelphia  from  its 
commencement,  and  had  left  it  not  only  in  despair  but  in 
disgust,  and  he  reached  New  York,  and  took  his  seat  in 
Congress  just  in  time  to  give  his  solitary  vote  against 
the  Ordinance.  But  from  his  political  character,  and 
being  a  northern  man  (Mr.  Yates,  of  the  State  of  New 
York),  it  is  not  unreasonable  to  suppose,  that  it  did  not 
arise  from  any  objection  he  had  to  the  anti-slavery  pro 
vision.  On  the  contrary,  it  would  be  fair  to  presume, 
that  the  clause,  added  before  its  final  passage,  for  the 
restitution  of  fugitive  slaves,  which  rendered  the  Ordi 
nance  the  more  acceptable  to  the  ultra  slavery  partisans 
of  South  Carolina  and  Georgia,  may  have  made  Mr. 
Yates  vote  against  it. 

This  brings  to  my  recollection  what  I  was  told  by  Mr. 
Madison,  and  which  I  do  not  remember  ever  to  have 
seen  in  print.  The  Old  Congress  held  its  sessions,  in 
1787,  in  New  York,  while  at  the  same  time  the  conven 
tion  which  framed  the  constitution  of  the  United  States 
held  its  sessions  in  Philadelphia.  Many  individuals 
were  members  of  both  bodies,  and  thus  were  enabled  to 
know  what  was  passing  in  each — both  sitting  with  closed 
doors  and  in  secret  sessions.  The  distracting  question 
of  slavery  was  agitating  and  retarding  the  labors  of  both, 
and  led  to  conferences  and  inter-communications  of  the 
members,  which  resulted  in  a  compromise  by  which  the 
northern  or  anti-slavery  portion  of  the  country  agreed 
to  incorporate,  into  the  Ordinance  and  Constitution,  the 


THE   ORDINANCE   OF   1787.  29 

provision  to  restore  fugitive  slaves;  and  this  mutual 
and  concurrent  action  was  the  cause  of  the  similarity 
of  the  provision  contained  in  both,  and  had  its  influence, 
in  creating  the  great  unanimity  by  which  the  Ordinance 
passed,  and  also  in  making  the  constitution  the  more  ac 
ceptable  to  the  slave  holders. 

Among  the  first  laws  passed  by  the  first  Congress  and 
approved  by  President  Washington,  August  7th,  1789, 
was  one  to  adapt  the  Ordinance  to  the  new  constitution 
of  the  United  States.  It  thus  received  the  sanction  of 
Congress  under  the  present  constitution,  as  it  had  pre 
viously  done  of  the  Old  Congress  under  the  Articles  of 
Confederation. 

The  7th  Congress  passed  an  act,  which  was  approved 
by  President  Jefferson,  April  30,  1802,  authorizing 
Ohio  to  form  a  State  constitution  and  for  her  admission 
into  the  Union;  "  Provided  the  same  shall  be  republican, 
and  not  repugnant  to  the  Ordinance  of  the  1 3th  of  July, 
1787,  between  the  original  States,  and  the  people  and 
States  of  the  territory  northwest  of  the  River  Ohio." 
This  was  the  first  of  the  States,  trained  during  its  minority 
under  the  government  of  the  Ordinance,  which  was  ad 
mitted  at  maturity  into  the  Union ;  and  no  doubt  its 
author  felt  a  peculiar  pleasure  at  being  then  President 
of  the  United  States,  and  having  it  in  his  power  to  use 
his  influence  in  shaping  the  terms  of  her  admission,  so 
as  to  carry  out,  and  perpetuate,  his  original  purpose  in 
making  permanent  the  great  fundamental  provisions  of 
the  Ordinance,  by  extending  them  to  the  States,  as  well 
as  to  the  Territories,  to  be  formed  out  of  the  North 
western  Territory. 

On  the  19th  of  April,  1816,  the  14th  Congress  passed 
an  act  authorizing  Indiana  to  form  a  State  constitution, 
and  for  her  admission  into  the  Union ;  and  on  the  1 8th 
of  April,  1818,  the  15th  Congress  passed  a  similar  law, 


30  THE  HIS;TORY  OF 

for  the  admission  of  Illinois.  Both  of  these  acts  were 
approved  by  President  Madison,  and  both  contained 
similar  provisoes — that  their  constitutions  when  formed 
should  be  "  republican,  and  not  repugnant  to  the  Ordi 
nance  of  July  13,  1787." 

The  16th  Congress  passed  an  act,  commonly  known 
as  the  Missouri  Compromise,  authorizing  the  people  of 
Missouri  to  form  a  constitution  and  State  government 
"  and  to  prohibit  slavery  in  certain  territories,"  approved 
by  President  Monroe,  March  6,  1820,  in  which  it  is  pro 
vided  "  That  in  all  that  territory  ceded  by  France  to  the 
United  States,  under  the  name  of  Louisiana,  which  lies 
north  of  36°  30'  north  latitude  not  included  within  the 
limits  of  the  State  contemplated  by  this  act,  slavery  and 
involuntary  servitude,  otherwise  than  in  punishment  of 
crimes,  whereof  the  parties  shall  have  been  duly  convict 
ed,  shall  be,  and  is  hereby  forever  prohibited :  Provided 
always,  that  any  person  escaping  into  the  same  from 
whom  labor  or  service  is  lawfully  claimed  in  any  State 
or  Territory  of  the  United  States,  such  fugitive  may  be 
lawfully  reclaimed,  and  conveyed  to  the  person  claiming 
his  or  her  labor  or  service  as  aforesaid."  This  act,  by 
using  language  so  similar  to  that  contained  in  the  Ordi 
nance,  recognizes  and  sanctions  its  provisions  in  relation 
to  slavery,  and  extends  them  to  all  the  territory  owned 
by  the  United  States  west  of  the  River  Mississippi  and 
north  of  36°  30',  except  the  State  of  Missouri. 

By  the  joint  Resolution  annexing  Texas  to  the  United 
States,  passed  by  the  28th  Congress,  and  approved  by 
President  Tyler  March  1st,  1845,  it  is  stipulated,  that 
such  States  as  may  be  formed  out  of  that  portion  of  said 
territory  lying  south  of  36°  30'  north  latitude,  commonly 
known  as  the  Missouri  Compromise  line,  shall  be  ad 
mitted  into  the  Union  with,  or  without  slavery,  as  the 
people  of  each  State,  asking  admission,  may  desire:  And 


THE   ORDINANCE   OF   1787.  31 

in  such  State  or  States  as  shall  be  formed  out  of  said 
territory,  north  of  said  Missouri  Compromise  line, 
slavery  or  involuntary  servitude  (except  for  crimes)  shall 
be  prohibited." 

The  act  passed  by  the  30th  Congress,  and  approved  by 
President  Polk,  August  14,  1848,  to  establish  a  terri 
torial  government  for  Oregon,  provides  "  That  the  in 
habitants  of  said  Territory  shall  be  entitled  to  enjoy  all 
and  singular  the  rights,  privileges,  and  advantages 
granted  and  secured  to  the  people  of  the  Territory  of 
the  United  States,  northwest  of  the  River  Ohio,  by  the 
articles  of  compact,  contained  in  the  ordinance  for  the 
government  of  said  Territory,  on  the  13th  day  of  July, 
1787,  and  shall  be  subject  to  all  the  conditions  and  restric 
tions  and  prohibitions  in  said  articles  of  compact  imposed 
upon  the  people  of  said  Territory."  It  cannot  escape 
notice,  that  this,  the  last  of  the  many  acts  of  Congress 
approbatory  and  confirmatory  of  the  Ordinance,  should 
be  most  complimentary  of  it.  The  language  used  repre 
sents  the  Ordinance  as  a  boon  by  which  the  people  of 
Oregon  became  entitled  to  enjoy  all  the  rights,  privi 
leges  and  advantages  which  that  measure  granted  and 
secured  to  the  people  of  the  Northwestern  Territory. 

This  statement  shows  that  between  1787  and  1854, 
when  the  Missouri  compromise  was  repealed,  a  period 
of  sixty-seven  years,  eight  different  Congresses  passed, 
and  six  different  individuals  acting  as  Presidents  of  the 
United  States,  viz:  Washington,  Jefferson,  Madison, 
Monroe,  Tyler,  and  Polk,  approved  eight  laws  of  the 
United  States,  enacting  and  re-enacting,  sanctioning  and 
confirming  and  extending,  as  well  in  length  of  time,  as 
extent  of  space,  the  ordinance  of  1787.  Yes — all  sections 
of  our  extensive  and  diversified  country,  and  all  the 
numerous  parties  into  which  our  people  have  been  di 
vided  since  our  confederation  was  formed,  have  given  to 


32  THE   HISTOEY   OF 

it  their  approbation  and  sanction,  and  that  also  to  a 
measure  involving  interests,  of  all  others,  the  most  excit 
ing,  and  on  which  there  has  even  been  the  greatest  and 
most  angry  diversity  of  opinions.  It  is  believed  that  no 
similar  measure  ever  received  such  signal  and  repeated 
proofs  of  the  approbation  of  the  people,  as  this  Ordinance 
has  done.  To  those,  who  will  trace  the  history  of  this 
question,  it  will  appear  marvellous,  and  show  the  pro 
found  wisdom  of  those  who  framed  such  an  efficacious 
measure  for  our  country.  Contrast  these  evidences  of 
approbation  of  the  Ordinance,  with  those  given  to  the 
Constitution  of  the  United  States,  and  it  will  result  great 
ly  in  favor  of  the  former.  It  will  show,  if  unanimity 
of  opinion  and  repetition  of  legislative  action  can  give 
weight,  that  the  Ordinance  is  entitled  to  even  more  than 
the  Constitution,  which  encountered  much  opposition  in 
the  national  convention  that  made  it,  in  which  it  received 
the  signatures  or  votes  of  but  thirty-nine  out  of  fifty-five 
members  who  attended  the  convention,  and  was  ratified 
by  small  majorities  in  many  of  the  State  conventions. 

To  a  cool  and  dispassionate  observer,  who  has  a  know 
ledge  of  the  enlightened  origin,  the  great  popularity, 
and  beneficial  effects  of  the  ordinance,  it  seems  to  be 
incredible  that  it  should  have  been  repealed ;  and  espe 
cially  denounced  as  violating  the  great  principles  on 
which  our  Government  is  founded.  Yet  such  has  been 
the  fact,  and  what  adds  to  the  astonishment  is,  that  this 
has  been  done  by  men  professing  to  be  of  the  Jefferson 
school  of  politics.  The  inconsistency  is  truly  mortifying 
to  those  who  believe,  as  well  in  the  capacity  of  man  to 
govern  himself,  as  in  the  wisdom  and  suitability  of  our 
political  institutions  to  promote,  above  all  others,  his 
happiness. 

In  conclusion  I  will  say,  the  wisdom,  expediency,  and 
salutary  practical  effects  of  the  Ordinance,  could  not  be 


THE   OKDINANCE   OF   1787.  33 

more  clearly  shown  than  by  contrasting  its  operations 
with  those  of  its  substitute.  Under  the  ordinance  from 
1787  to  1854,  the  Territories  subject  to  it  were  quiet, 
happy,  and  prosperous.  Since  its  principles  were  repu 
diated,  in  1854,  we  have  had  nothing  but  contention, 
riots,  and  threats,  if  not  the  awful  realities  of  civil  war, 
which  painful  state  of  things  has  been  brought  about  by 
the  substitution  of  the  legislation  of  1854  for  that  of 
1787,  long  consecrated  as  it  had  been  by  time,  and  by 
the  approbation  of  the  greatest  and  best  men  of  our 
country. 


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